July 15, 2008

Tewksbury School Board Files Federal Lawsuit

by ssavage

By Lisa Redmond, The Sun, Lowell, Mass.

Jul. 15--BOSTON -- The Tewksbury School Committee has filed a federal lawsuit against the state's Bureau of Special Education Appeals and the parents of a special-needs student after the state ruled the town must pay for private tutoring at a non-approved tutoring center for the student.

In the lawsuit filed last Thursday, attorney Amy Rogers, on behalf of the Tewksbury School Committee, explained that on Dec. 19, Tewksbury schools convened a team meeting for the annual individual education program review of a student, who is not identified in court papers.

At the meeting the student's mother, Linda Darveau, explained that she and her husband, James Darveau, had been privately paying for their child's tutoring services at the Kumon Center of Tewksbury and she wanted that to continue with the town footing the bill.

The team agreed the child would benefit from tutoring, but refused to agree on the Kumon Center being the provider, according to the lawsuit. The Kumon Center is not approved by the Massachusetts Department of Elementary and Secondary Education to provide special-education services.

The team proposed that the child's IEP include math tutorial services two days per week for 60 minutes, but the services would be provided by school district personnel. Notes of the meeting allegedly state the parent accepts the change to the IEP but rejects the placement of the tutoring.

Less than a month later, on Jan. 15, the parents filed a request for a

hearing with the Bureau of Special Education Appeals of the Massachusetts Department of Elementary and Secondary Education stating that the team made the decision to include tutoring at the Kumon Center, but the decision was overruled by the town adminstrator.

Rogers, on behalf of the town, denied the allegations and the town filed a response to dismiss the claim, saying that as a matter of law, the school district cannot be required to provide services from a program that is not approved by the DOE.

But on March 27, the Bureau of Special Education Appeals denied the town's objection, and the following month, ordered the town to reimburse the parents for what they had paid for private tutoring from December 2007 and amend the student's educational program to include services to be provide by the Kumon Center with the town paying the bill.

In addition, the decision requires Tewksbury to reimburse the parents for transportation costs from the students school to the Kumon Center.

Rogers did not return an inquiry to her office about the costs to the school district and the Darveaus could not be reached for comment.

A spokesman for the state Department of Education said the DOE does not comment on Bureau of Special Education Appeals' cases.

In its decision, the BSEA wrote that "both parties agree that the team discussed the child's need for math tutoring, agreed that tutoring he was doing at Kumon was benefiting him and determined the amount of math tutoring that the child needed by calculating the amount of tutoring the child was receiving at Kumon."

In addition, the documents state that the team did not discuss any aspects of the math tutoring, including who would deliver the tutoring, what the tutor would do or the qualifications of the tutor.

"The preponderance of the evidence shows that the team members agreed the child should receive math tutoring at Kumon, but were prevented from including their recommendations ... because they were not allowed to make team decisions for outside services without approval from the administration," the BSEA wrote.

"Tewksbury's actions significantly impeded the mother's opportunity to participate in the decision-making process ... therefore the parents are entitled to reimbursement," according to the decision.

The child's mother also showed that the math tutoring the child receives at Kumon is appropriately responsive to his special needs and that he has benefited educationally, the decision states.

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